Signs of the Times

The NY Times reported Saturday on the cigarette signage lawsuit-and focused some attention on the first amendment issue: "The suit, filed on Wednesday in United States District Court in Manhattan, contends that the placard rule infringes on the federal government’s authority to regulate cigarette advertising and warnings and violates the First Amendment rights of store owners who disagree with their message, and that the placards are so disgusting that they hurt business by discouraging people from buying not only cigarettes but also more-wholesome merchandise like milk and sandwiches."

As one store owner told the Times: "A clerk at the store, Saiful Islam, said a photograph on the cash register, of a diseased tooth, was so upsetting that some customers had switched from buying cigarettes to buying candy or gum. Many of them were spending as much on soda, candy and lottery tickets as they had on cigarettes, he said, so the store had not lost business."

The lead litigator on the free speech question is Floyd Abrams, the unparalleled defender of first amendment rights in this country: "This is not the city taking out a billboard, which it would have every right to do,” Floyd Abrams, a First Amendment lawyer who is representing the convenience stores, said Friday. “What it doesn’t have the right to do is to force other people to adopt its expression.”

And the suit also addresses the fact that the signs take away from an important advertising revenue source for beleaguered store owners-an issue when Abrams successfully knocked down the Peter Vallone sponsored advertising ban that was promulgated when he was city council speaker: "The suit also complains that because of heavy restrictions on cigarette advertising, advertising space near the cash register is one of the last places where companies can promote their brands. By putting ugly posters there instead, the suit says, the city is blocking tobacco companies from communicating with consumers, depriving retailers of coveted advertising revenue and pushing restrictions on tobacco-related speech “past the constitutional tipping point.”

In its defense of the measure, the department of health once again underscores its lack of respect for the intelligence of New Yorkers-and its absolute disdain for the viability of stores that are the economic linchpin in neighborhoods ravaged by a recession that the currently administration has only made worse through its tax and regulatory policies: "In a statement, the city’s health department said that putting warnings where cigarettes were sold was one of the most effective ways to deter people from smoking and to discourage a new generation of smokers. “By trying to suppress this educational campaign,” the statement said, “the tobacco industry is signaling its desire to keep kids in the dark.”

The reality is that the main deterrent to youth smoking is the price of the product-and that deterrent price is being thwarted by rampant smuggling-as we have made clear ad nauseum. Store clerk Islam drives this point home: "He said the taxes that had pushed the price of a pack of cigarettes to $10 were worse for business than the posters, because they led people to buy cigarettes on the black market — which he said thrived on the sidewalk right outside the store."

According to some of out small store owners the city signage requirements are now over 30 separate posters and counting-each of course demanding a prominent display in the stores that have little room to show the wares that they depend on for their livelihood. If this keeps up, there will eventually be only one sign left to display: "Store for Rent."